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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Serie: Key Concepts
- Sprache: Englisch
Crime is a source of endless fascination and fear. Yet behind the apparent consensus that crime must be fought, there is considerable conflict about what should or should not be treated as criminal, and even the most shocking crimes can inspire divisive debate. This concise book explores the seemingly simple, common-sense concept of crime revealing the huge complexities, ambiguities and tensions that lie beneath it. Criminal law is often at odds with different moral perspectives and the practices of different cultures. The mass media distort the picture profoundly, as do politicians in pursuit of law and order votes. The criminal justice system tackles only a limited range of crimes almost entirely ones committed by the poor and relatively powerless while often neglecting the most dangerous and harmful activities of corporations and states, from the carnage of unjust wars to the tragedies engendered by austerity. It is only by examining the multiple and varied perspectives on crime that we can begin to understand and respond appropriately to this social phenomenon. Written by a world-leading criminologist, this insightful book will be an invaluable and captivating introduction for students and interested readers of criminology, law, sociology and politics.
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Veröffentlichungsjahr: 2016
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Table of Contents
Series page
Title page
Copyright page
Dedication
Introduction: Crime: Conundrums of a Common-Sense Concept
Crime: concept and conceptions
Constructivism vs realism
Social injustice and criminal justice
Notes
1: Legal Conceptions of Crime
Crime and criminal law: anchored pluralism
A Mephistophelean maze: formal criminal law
Criminal law ‘in the books’: historical and cultural variation
The emergence of crime as a concept
Criminal law: an ideal-type
The centrality of the state in criminal law
State punishment and criminal process
Relatively stable order as a prerequisite of the concept of crime
The nature and functions of criminal law: antinomies of analysis
Notes
2: Moral Conceptions of Crime
Moralistic perspectives
The emergence of modern liberal criminal law theory: Beccaria to Blackstone
The criminalization of private (im)morality debates
The normative ‘counter-reformation’ in criminal law theory
Notes
3: Everybody's Doing It: Social Conceptions of Crime and Deviance
4: How Do They Get Away With It? The Non-Criminalization of the Powerful
Middle-class crime
Corporate crime
State crime
Notes
5: The Criminal Justice Process and Conceptions of Crime
The (mis)measurement of crime
Problems of interpreting crime statistics
Technical recording problems
The coverage of recorded statistics
How many and which offences to count?
Dimensions of the ‘dark figure’
Crime surveys
Trends in crime
Conclusion
Notes
6: Media, Crime and the Politics of Law and Order
The media crime debate
The changing discourse of crime stories
Law and order: politics and policy
7: Whodunnit and Why? Criminological Conceptions of Crime
Criminology and the explanation of crime: a crook's tour of competing theories
Varieties of criminology
The historical development of criminological perspectives
Explaining contemporary crime trends: an eclectic model
Accounting for the crime trends: rising crime 1955−1995
The western crime drop mystery
Cultural change: a re-civilizing process?
Conclusion: political economy or policing?
Notes
Conclusion: Crime: A Capital Concept
Notes
References
Index
End User License Agreement
List of Tables
Table 5.1 Prison and general population compared
Table 6.1 Sources of information about the police (%)
List of Illustrations
Figure 5.1 Attrition in the criminal justice system
Source
: Barclay and Tavares 1999: 29.
Figure 5.2 Trends in police-recorded crime and CSEW, 1981 to year ending September 2014.
Source
: ONS 2015a: 6
Figure 5.3 Trends in CSEW violence, 1981 to year ending September 2014.
Source
: ONS 2015b: 20.
Guide
Cover
Table of Contents
Start Reading
CHAPTER 1
Index
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Copyright page
Copyright © Robert Reiner 2016
The right of Robert Reiner to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.
First published in 2016 by Polity Press
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ISBN-13: 978-0-7456-6030-1
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Library of Congress Cataloging-in-Publication Data
Names: Reiner, Robert, 1946-
Title: Crime : the mystery of the common-sense concept / Robert Reiner.
Description: Malden, MA : Polity Press, 2016. | Includes bibliographical references and index.
Identifiers: LCCN 2015043505 | ISBN 9780745660301 (hardback : alk. paper) | ISBN 9780745660318 (pbk. : alk. paper)
Subjects: LCSH: Crime. | Criminal justice, Administration of.
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Dedication
To the carriers of the future: Jacob, Ben, Charlotte and David, Toby and Meg
Introduction: Crime: Conundrums of a Common-Sense Concept
‘This is criminality, pure and simple, and it has to be confronted and defeated.’
(David Cameron, quoted in Sparrow 2011)
Contrary to these shoot-from-the-hip remarks by the British prime minister, reacting to the 2011 London riots, crime ‘is rarely pure and never simple’ (to borrow Oscar Wilde's characterization of the truth). Crime hardly seems an example of purity, and it is far from simple, either as a concept or as a problem to be ‘confronted and defeated’, as this book will show.
Spectacularly gory crimes are prime water-cooler moments, uniting all healthy consciences in abhorrence and condemnation, just as Durkheim (1973 [1893]: 80) argued more than a century ago. Yet behind the apparent consensus that crime must be fought, there is considerable conflict about what should or should not be treated as criminal. Even the most shocking crimes divide as much as they unite. The massacre in July 2015 of nine black worshippers in a Charleston church caused revulsion around the world. The South Carolina legislature voted against displaying the Confederate flag, and many major retailers stopped stocking it. Yet sales of the Confederate flag are reported to have soared (Guzman 2015). The suspect, Dylann Roof, was treated to a Burger King by the cops driving him to jail (McCormack 2015). There are clearly conflicting perspectives on even the most horrifying slaughters, especially when divisive loyalties − such as those of race, nationality, class or religious belief − come into play.
Crime has long been a central theme in popular culture and prominent in measures of public anxiety (as registered by opinion polls – although it has been slipping down the hierarchy of concern in the last decade). But what crime is has largely been taken for granted (even though how to explain and tackle it generates fierce controversy). Crime can be seen perhaps as an essentially uncontested concept (to turn on its head the influential notion of ‘essentially contested concepts’ introduced by Gallie in 1957) but one that ought to be highly contested. The discipline of criminology is evidently defined around the idea of crime, even though some of its most celebrated theories have sought to deconstruct it. But despite all the problems in defining crime that will be elaborated on in this volume, discussions of this underpinning concept have generally been confined to opening chapters (frequently perfunctory) in criminology textbooks. These usually skip rapidly through some controversies and conundrums, before proceeding with the more substantive matters of measurement, explanation and policy.
The general playing down of the issue is indicated by the absence of a text that focuses on the concept of crime, although there is a valuable volume of articles that collects important classic and contemporary contributions (Henry and Lanier 2001). This book will systematically review the problems posed by the concept of crime, and how these have affected criminological theories as well as public and policy debates. It will confront the paradox that the term ‘crime’ features prominently in public debate and popular culture as if it was straightforward and uncontested, but it is deployed in multiple, frequently contradictory, ways.
The book will also discuss the historical emergence of the concept of crime, and what its broad conditions of existence are. Chapters 1 and 2 trace how crime as a distinct element of law, conceived of as a technical realm of universal and objective rules, emerged out of much more amorphous notions of sin and morality, hand in hand with the development of modern capitalism. The broad political and cultural preconditions of the concept of crime include: strong centralized states; a culture of individualism, with associated notions of personal responsibility; and a degree of social stabilization and pacification.
Crime connotes an intermediate level of threat to norms shared within a fundamentally settled order. ‘Trivial’ nuisances are problematically conceived of as crime, as are massive occurrences of violence and destruction in war at the other end of the scale. Contemporary debates about anti-social behaviour and terrorism indicate these limits, as does the breakdown of order in many parts of the world that are deemed to be failed or threatened states.
Crime: concept and conceptions
Crime is an example of what has been called an ‘essentially contested concept’, ‘concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users’ (Gallie 1957: 169). ‘The key to Gallie's idea of essential contestability is a combination of normativity and complexity’: normative concepts with a certain internal complexity are essentially contested (Waldron 2002: 150).
Crime is an essentially contested concept because it is complex but, more fundamentally, because at heart it raises normative rather than technical or factual issues. It is common for people to argue about whether something ought to be a crime or not, whether it really is criminal, how it should be treated, and so on. These exchanges are usually interminable because they invoke differences in moral or political beliefs or involve the conflicting interests, values, experiences and practices of different cultures or social groups. Yet, in the first place, people assume they mean the same thing when talking about crime, and indeed that it is an important matter about which all right-thinking people agree. In short, crime is an essentially contested, conflict-ridden concept that is treated as if it were essentially uncontested and consensual.
This can be illuminated by a distinction, drawn by many philosophers, between an underlying concept and specific conceptions of it (e.g. Rawls 1971, which distinguishes between an underlying concept of justice and contested particular conceptions of what it entails). I suggest that there is a fundamental deep-level agreement on what is meant by crime, the basic concept, but that there are different, essentially contested, conceptions of what this means in terms of specific acts, practices, contexts and meanings.
The deep agreement about the concept of crime is not, in my view, the one generally proposed. The idea of crime as an infraction of criminal law is the definition found in most dictionaries and, in my experience at least, the one most people would offer if asked. Moreover, it is anchored by certain processes − labelled as criminal procedure – which, if followed, result in people accused of breaking criminal laws being punished, i.e. having ‘pain’ inflicted on them. However, there is nothing contradictory about arguing that actions proscribed by criminal law ought not to be, and vice versa. Criminal law has a complex and problematic relationship with different views of morality, as chapter 2 will explore. It is also the case that criminal laws have a tortuous relationship to social practice, and laws are in fact violated by most people, including the apparently respectable, as chapter 3 will show. The criminal law that is applied in action constitutes a tiny proportion of the laws in the books, and it is systematically biased against the poor and powerless, as chapter 5 demonstrates. At the same time, law breaking and serious harms and wrongs committed by the powerful usually escape with impunity, as elaborated in chapter 4.
The picture of crime that most people have is not rooted in their own experience but in highly slanted images derived from the mass media, and it is these that (mis)inform popular and political debate, as chapter 6 illustrates. Finally, chapter 7 explores the ideas of crime, causation and control developed by criminology over the years, and will show that each is problematic as a general theory. Nonetheless, they can be the basis of an eclectic model, synthesizing the core perspectives, which can illuminate trends and patterns over time (although the explanation of the recent fall in crime in western countries presents formidable difficulties). Thus the legal notion of crime is only one of several competing conceptions, even though it is anchored in the power of the state, which confers upon it the threat of official punishment for breaches.
The basic concept of crime that people agree upon (although they differ about what it means in terms of specific practices) is elusive because it is not a cognitive concept, referring to a particular reality outside itself. Rather, it is an expressive concept, embodying an attitude of revulsion, fear, pain or disapproval. In the everyday meaning of the term, it is a censure,1 an expression of ‘strong criticism or disapproval’ (Cambridge English Dictionary online).
To call something a crime is to register disapproval, fear, disgust or condemnation in the strongest possible terms and to demand urgent remedies – but not necessarily the pain of criminal penalties. A neat way of putting this is the characterization by Egon Bittner of why people call the police. Someone calls the cops, he argued, when she experiences ‘something that ought not to be happening and about which something ought to be done’ (1974: 30). This neatly fits the basic concept of crime, an expression of condemnation and concern, which may be provoked by various specific conceptions of what exactly the problem is. It may be that a criminal law has been broken, and the demand is for the invocation of the criminal process. But more often it will be an expression of moral condemnation, disgust, or a cry for help against some threatening harm that may or may not be subject to criminal law. As the chapters of this book will elaborate, conceptions of crime can be legally based, or they could derive from other moral perspectives. Either way, they can differ substantially from conceptions of crime as deviance, i.e. departures from normal social practice, and from media, political or criminological conceptions of crime.
Constructivism vs realism
Two broadly contrasting perspectives on how to define crime can be found in criminology: ‘constructivist’ and ‘realist’. These are not mutually exclusive, and indeed I would argue that both have a degree of validity. Nonetheless, they have often been presented imperialistically, denying any truth to the opposing viewpoint. The contrast between these approaches runs through most of the debates considered in this book.
The constructivist position claims that ‘crime’ is purely a product of perception and political process, not any intrinsic characteristic of the behaviour so labelled. It is quintessentially encapsulated in an influential assertion by Louk Hulsman, a leading Dutch penal abolitionist: ‘Crime has no ontological reality’ (Hulsman 1986: 71). By this he meant that ‘Crime is not the object but the product of criminal policy’ (ibid.). In Hulsman's analysis, criminalization occurs when a person or organization ‘deems a certain “occurrence” or “situation” as undesirable …attributes that undesirable occurrence to an individual’, and wants this individual punished through law and criminal justice, rather than other styles of conflict resolution, sanctioning or peace keeping. His conclusion is that the concept's lack of ‘ontological reality …makes it necessary to abandon as a tool in the conceptual framework of criminology the notion of “crime” ’ (1986: 71).
At one level, Hulsman is correct by definition. Without the labelling of particular behaviours as criminal, they would not be crimes. Crime could be abolished at a stroke by wholesale decriminalization. But, as the realists argue, many activities that are treated as crime by criminal law are widely regarded as harmful, especially to the most vulnerable people in society, and these should not continue unchecked. Whether the standard modes of criminalization and punishment are justifiable, effective or counterproductive is an urgent debate, but the harm and suffering that are inflicted by crime would not be abolished by removing the label. Indeed, critical criminologists have argued that there are very serious harms, committed with relatively impunity by the powerful and privileged, that should be regarded as at least as serious as mainstream volume crime.
The constructionist position is often presented in abstraction from analysis of the wider structures of power and advantage in contemporary capitalist societies. Conflicts over whether to label activities or people as criminal are not carried out on a level playing field. The wealthy and powerful have disproportionate power to shape law making, and to evade its enforcement. The idea of a ‘criminal justice system’ is at best an unrealized dream, and at worst an ideological cloak disguising injustice, as chapters 4 and 5 will show. The title of a classic critical criminology text sums it up well: The Rich Get Richer and the Poor Get Prison (Reiman and Leighton 2012). What complicates matters is that it is also the poor who get disproportionately victimized by crime. All of this has been accentuated by the political triumph of neo-liberalism since the 1970s throughout the western world (Streeck 2014), vastly exacerbating the injustices of criminal justice (Reiner 2007; Bell 2011, 2015; Turner 2014).
The realist position straddles a wide spectrum of political and theoretical ones, united only by their acceptance that crime represents real problems, which exist whether or not they are labelled as crime. Most criminological research, past and present, has operated with what can be regarded as naive realism. It has simply taken for granted the categories of criminal law as the objects of analysis. Criminology in practice has focused on the small part of criminal law that gets to be formally measured and processed, and the even smaller group of criminal justice lottery losers, those who are caught and convicted (sometimes incorrectly).
Self-declared realist approaches originated in the 1970s as a conscious reaction to the critical criminology that proliferated in the 1960s and early 1970s. The key aspects of critical criminology that realists of all stripes targeted were its tendencies to extreme constructivism and to crime control scepticism.
Right-wing realism was spearheaded by James Q. Wilson's seminal 1975 book Thinking about Crime. Wilson sidestepped any issues about defining or measuring crime, focusing on ‘predatory street crime’, not only because it was what most frightened the public but because he saw it as a truly menacing and immoral threat to civilized existence. Wilson dismissed liberal-Left criminology's pursuit of ‘root causes’ of crime as a pointless and misguided distraction from seeking innovative, workable solutions to crime. His goal was the identification of promising policies that could economically and effectively reduce crime in the here and now, without waiting for social ‘root causes’ (which he was dubious about anyway) to be tackled by social reform and redistributive welfare (which, as a conservative, he opposed).
Wilson's book was symptomatic of the rapid ousting of the post-war Keynesian welfarist consensus by neo-liberalism. Wilson himself stressed smart, evidence-based initiatives, rather than tougher, ‘zero tolerance’ policing and punishment. However, his realist blueprint provided an intellectual boost not only to what has come to be known as administrative criminology, developing more effective security and opportunity-reducing situational prevention, but also to a prison boom in many countries. Such strategies have been celebrated as the source of the crime drop since the 1990s by can-do criminal justice policy makers and governments. These claims will be considered critically in chapter 7.
In parallel with the growth of Right realism and administrative criminology, there also developed a vigorous Left realist perspective, a reaction against what some critical criminologists had come to disown as their own earlier ‘Left idealism’ (Young 1975; Lea and Young 1984). Crime, they argued, was not just an ideological construction aiming to demonize the poor. It was a real scourge precisely in the poorest communities, as most crime was intra-class. A major source of Left realism was also the growing influence of feminism, and a sensitization to the reality of the pervasive victimization of women (and children), in working-class and other communities, by violence and abuse.
Although Left realists did accept that there were deeper, fundamental causes of crime, they argued that the Left must develop effective and practicable interventions to tackle crime now, and not just talk of reducing the long-run sources. The answer was not tougher but more legitimate, evidence-led policy. For example, the police would be more effective if they could regain legitimacy in poor and/or black and minority ethnic (BAME) areas, which had become alienated by militaristic tactics, through more consensual, community-oriented styles which facilitated the flow of information.
Both constructivism and realism make important points that can and should be reconciled (as recognized for example by a new ‘ultra-realism’, cf. Hall and Winlow 2015). Criminal law making and enforcement are largely shaped by the massively unequal structures of power and wealth in capitalist societies, which are growing ever wider under neo-liberalism. The constructivists are thus right to problematize processes of criminalization.
However, much criminal law does have popular support, even though the law in action focuses almost exclusively on the street crimes committed by poor, marginalized young men. Popular support for criminalization of such predatory offences is only in small part a matter of media-fomented false consciousness, though no doubt the media do purvey a distorted representation of crime (see chapter 6). At its core, the popular legitimacy of much policing and penal policy is grounded in the reality of serious harm perpetrated by poor young men against others, and also against women, children and older people, in their neighbourhoods.
Critical criminology has rightly emphasized the massively greater harms against property and people perpetrated by the crimes of the powerful (Hillyard et al. 2004; Green and Ward 2004, 2012; Tombs and Whyte 2015). Many of these most dangerous actions are not unequivocally criminalized because of the power of elites to erect barriers of impunity around their depredations (as chapter 4 demonstrates). However, there are various reasons why it is harder to generate popular concern about the suffering inflicted by state and corporate wrongdoing, apart from low visibility fabricated by the operation of power itself. One is the longer, more complex, chain of causation, running from decisions made at the top of organizational hierarchies to the pain of the mass of people suffering from these policies.
Even more fundamentally, there is a gulf between the immediate fear and injury engendered by face-to-face confrontation, and the possibly more serious, even life-trashing, but less visceral anguish caused, say, by financial skulduggery or by austerity policies that can kill people. Recently, my teenage son and I had to get our car from a dark, deserted underground car park in the small hours. We both acknowledged relief as I drove out. I may have lectured for many years about the small risk of being attacked by a robber compared, say, to my crashing the car on the way home. I know that I am actually suffering greater financial loss from being mis-sold payment protection insurance (PPI)2 and other products, and from such crimes as organized rigging of key lending and exchange rates, than I would even from several thefts of my money and mobile. None of these truths comforted me in those few frightening minutes.
The realists of the political Right and Left correctly stress the seriousness of the core of ordinary criminal law offences. However, the constructionists also underline validly that the formation and the enforcement of criminal law are shaped by unequal and unjust structures of power and advantage.
Social injustice and criminal justice
Criminal law in the books and in action has a Janus-faced character. On the one hand, it contributes to a degree of order that is necessary for coordination and peaceful coexistence in a minimally civilized society. On the other hand, all known complex societies have been built on unjust, unequal hierarchies of power and privilege. As pithily formulated by policing scholar Otwin Marenin, criminal justice deals with both ‘parking tickets’ and ‘class repression’ (Marenin 1982). So even if criminal law contributes to maintaining order in a fair way, without acerbating inequality, the order that is reproduced is structurally unjust. But for reasons similar to those that vitiated Stalin's doctrine of ‘socialism in one country’, social justice is unachievable in one institution that is encircled by an unequal society. In reality, all criminal justice institutions acerbate the social inequalities in the societies they are embedded in.
The concept and conceptions of crime are intricately interconnected with the development and operations of modern capitalism. We will see this in subsequent chapters, when the development and ramifications of conceptions of crime are explored. The project of developing a supposedly objective, technically administered, neutral code of right and wrong that applies to everyone and is accepted by everyone may be an impossible dream in a society structured by deep inequalities of class, ethnicity, gender and other lines of cleavage. At the same time, the essentially contested ideal of the rule of law, as the optimal way of settling disputes and enforcing norms, may be of universal value, as the Marxist historian E. P. Thompson argued powerfully against a majority of his fellow radicals (Thompson 1975: Part 3, iv). Nonetheless, as Thompson's own historical research demonstrated, the formulation and practice of criminal law are a far cry from the ideals of legality and are grotesquely distorted by inequalities of class and power.
The subsequent chapters of this book will consider the multiple specific conceptions of crime, contesting the amorphous basic concept of crime − an assertion that something seriously problematic and wrong is happening and that something needs to be done. We will look at: the anchored conception of crime as criminal law violation; the problematic relationship of this to morality and social practice; the unequal application of it to the powerful and the disadvantaged; how media and political discourse misrepresent crime; and how crime patterns and trends (especially the recent crime drop) might be explained. Running through all these conceptions will be the key structuring relationship between crime and capitalism and how this has mutated over time and between places.
Notes
1
This is distinct from Sumner's sophisticated application of Marxist theory of ideology to crime which he calls ‘censure theory’ (Amatrudo 2009: 86−8), discussed later in
chapter 3
.
2
PPI refers to ‘Payment Protection Insurance’, policies purporting to protect borrowers by carrying on their loan repayments in the event of illness or other circumstances that make it hard for them to continue paying. These policies were widely sold (often covertly) by British banks. These were held by the courts to have been mis-sold in many cases, and banks have been compensating victims for this.
1Legal Conceptions of Crime
Crime and criminal law: anchored pluralism
A while ago, a friend asked me what I was working on. I told him it was a book about the concept of crime. He replied ‘it must be the shortest book ever written. A crime is something that's against the criminal law. What else is there to say?’
The concept of crime is complex and multifaceted, however, condensing a number of partly conflicting, partly overlapping meanings. A plurality of meanings of ‘crime’ are at play in popular culture, policy debate and academic discourse. Nonetheless, the idea of crime as infraction of criminal law anchors this diversity. The profusion of definitions can be seen as an example of ‘anchored pluralism’, borrowing a term originally used in the analysis of security (Loader and Walker 2007: 192−4).
The notion of crime as those actions that breach criminal law anchors the diversity and ambiguity of different conceptions in a number of ways. It would probably be the primary definition offered by most people, even if they have only a sketchy idea of what is entailed by criminal law. Certainly, most dictionaries define crime primarily as violation of criminal laws.
More substantially, the identification of crime and criminal law is anchored in social practice. It is only formal criminal law that is explicitly promulgated by government processes. And only infractions of it are subject to state punishment, as distinct from informal sanctions or legally imposed restitution.
The main definition of crime offered by dictionaries is in terms of criminal law. The online Oxford Dictionary, for example, gives as its primary definition of crime: ‘An action or omission which constitutes an offence and is punishable by law.’ This primary definition is followed by a second: ‘An action or activity considered to be evil, shameful, or wrong.’
A crucial and problematic issue is to what extent do these definitions overlap? Actions or activities may often be condemned as ‘evil, shameful, or wrong’, but nonetheless not be offences criminalized and punishable by law. Contemporary examples of behaviour that outrage many people, whilst perhaps staying just the right side of criminal law breaking, include: egregious tax avoidance schemes exploiting ‘loopholes’ in the law to avoid their being illegal tax evasion; MPs' expenses claims that seem excessive but are within the rules; and the 2003 US/UK invasion of Iraq.
Conversely, some criminal law breaking may not be seen as evil, or morally wrong, by many people. Judging by frequent arguments with friends and family, and by everyday observation, such activities as speeding, using mobile phones whilst driving or paying for services in cash when it is clear earnings are not being declared are widely regarded as not ‘real’ crime. The spheres of criminal law and morality may overlap to some extent, but they are certainly not identical, and social practice may differ from both. A key feature of late or post-modern culture is the erosion of consensus about acceptable behaviour and a greater tolerance of a diversity of social practices.
The formal doctrinal content of law ‘in the books’, however, is not only much less coherent and straightforward than either popular or dictionary definitions assume. It is also hugely different from the ‘law in action’ – how the criminal justice system operates in practice. Indeed, as chapters 4 and 5 will demonstrate, the phrase ‘criminal justice system’ is itself a euphemistic misnomer. The law in action scarcely tackles most crimes, is far from just in its operation, and is systematic only in its remorseless focus on the crimes of the poor and powerless, whilst the rich and apparently respectable enjoy virtual immunity for their wrongdoing.
The mass media, furthermore, greatly distort the picture of crime and criminal justice, typically promoting a highly simplistic drama of straightforward good vs evil, as chapter 6 will show. Chapter 7 suggests that this is also true of the academic study of crime which, for much of its history and to an increasing extent, has bracketed out fundamental analysis of causes, focusing on immediately practicable projects and fine-tuning the functioning of criminal justice conceived in very narrow and technocratic ways.
A Mephistophelean maze: formal criminal law
In this chapter, the focus will be on analysing the concept of crime as violations of criminal law ‘in the books’, i.e. as promulgated in statute and case law. It will trace the emergence and development of a distinct criminal law and consider various attempts by legal, criminological and social theory to delineate its specific nature and functions.
The concept of ‘crime’, in any of the contemporary versions that will be explored in this book, is not a universal one, and this is particularly true of criminal law-based definitions. Criminal law has specific historical conditions of existence, and its emergence is related to the rise of capitalist political economies and certain associated features of modern culture, notably liberal individualism.
Although not accepting the perspective of legal positivism − the position that questions of identifying what law is should be sharply distinguished from moral or political evaluation of what law ought to be − this chapter will focus primarily on analytic and explanatory theories of criminal law, postponing the deeply intertwined normative issues of evaluation and prescription to chapter 2.
As a preliminary health warning, however, it is worth stressing the massive extent and apparent diversity of contemporary criminal law ‘in the books’, profoundly challenging simple explanation or evaluation. The number of separate offences created by legislation is hard to calculate and sensitive to complicated definitional issues of what counts as a separate crime. A much-cited assessment has claimed that, in its first nine years, Tony Blair's New Labour government in Britain sought to deliver on its celebrated promise to be ‘tough on crime’ by creating some 3,000 new criminal offences, more than one per day (Morris 2006). Whilst subsequent governments have distanced themselves from ‘Blair's “frenzied law-making” ’ (ibid.), new crime statutes have continued to proliferate,1 as governments have passed new criminal laws as a panacea for all kinds of social problems.
The UK list of ‘Notifiable Offences’ (which the police have a statutory obligation to record) includes more than 1,500 types of criminal offence (each type containing many separate offences), which have been criminalized over the centuries by common law and statute.2 The broad miscellany of behaviours that have been criminalized calls into question any simple generalizations about characterizing crime.
Criminal law ‘in the books’: historical and cultural variation
Defining the scope of criminal law in substantive (rather than formal or procedural ways) is notoriously problematic because of the multitude of different kinds of function and character apparent in the vast, rapidly growing and shifting corpus of criminal law (Farmer 1996; Ashworth 2000; Lacey, Wells and Quick 2003: 1−15).
This is underlined by the huge cultural variation across space and time in what has been counted by the law as criminal. The business of the English courts a few centuries ago would be largely unrecognizable to their contemporary counterparts, as illustrated by a historical study of felony indictments in Essex between 1559 and 1603 (Cockburn 1977). In line with contemporary crime patterns, property offences predominated (110 highway robberies, 320 burglaries, 1,460 larcenies), with a smaller proportion of violent (129 homicides and 28 infanticides) and sex crimes (28 cases of rape, eight of buggery). But a striking difference between the Essex courts of the first Queen Elizabeth and those of the second was the 172 cases of witchcraft tried in the former!
The change in conceptions of crime is even more striking in the lower courts. A study of Essex quarter sessions between 1628 and 1632 found that, out of 3,514 offences prosecuted, 144 were thefts and 48 assaults. But these figures are dwarfed by the 480 prosecutions for allowing bridges or roads to fall into decay, 229 for keeping a disorderly alehouse, and − the most numerous offence category − 684 prosecutions for failing to attend church (Wrightson 1980). Prosecutions in ecclesiastical or manorial courts show a yet wider range of offences that are not recognized today (Sharpe 1984: 50−3), such as adultery, fornication, bridal pregnancy, scolding and disrupting the sabbath in a variety of ways such as working, drinking in an alehouse or wearing a felt hat. On the other hand, the English courts of the first Elizabethan England knew nothing of such matters as parking tickets, cybercrime or drug-related offences (alcohol apart).
It can plausibly be argued that there has to be a ‘minimum content of natural law’ if a society is to survive as more than a short-term suicide club (Hart 1961: 189−94), involving some protection of person and property. However, the variation in how this ‘minimum’ is achieved, and what activities are proscribed at different times and places, makes the content of law contingent on a host of social, political, economic and cultural circumstances that underpin the processes of criminalization (Duff et al. 2014).
The emergence of crime as a concept
All societies, perhaps all relationships, are characterized by deviance. Some basic reasons for this were well set out a century ago by Emile Durkheim, one of sociology's founding fathers. Statistical deviance from the norms of any group, in the sense of behaviour departing from its central tendencies, is inevitable. ‘It is impossible for all to be alike, if only because each one has his own organism and that these organisms occupy different areas in space’ (Durkheim 1964 [1895]: 69). Thus, even in a ‘cloister of saints’, there will be deviance and punitive reactions sanctioning it, even though the precise nature of the ‘sins’ in such an environment might not cause any concern in our own more blasé, morally insensitive cultures (ibid.: 68−9).
But, whilst deviance and control may be perennial, there are distinctive features of modern concepts of crime and of the associated repertoire of formalized responses. As anthropologists have shown, it is only in relatively complex societies, with a developed division of labour, that specific ‘legal’ mechanisms for dispute resolution and order maintenance emerge. In simpler societies, these functions are achieved through other institutions, notably kinship and religion.
Anthropological studies have been conducted on many pre-literate societies that lacked any formalized system of social control or policing. In his famous ethnography of Crime and Custom in Savage Society, the pioneering social anthropologist Malinowski analysed processes of conflict resolution and order maintenance in a small-scale pre-literate society (Malinowski 1926). In the absence of ‘codes, courts and constables’, conflicts were resolved, and wrongs were punished, by mobilizing informal communal and kinship sentiments and structures. Subsequent anthropologists have explored the subtle, complex processes adopted in different stateless societies without specialist legal systems, based on kinship, religion and feuding patterns (Roberts 1979).
A classic cross-cultural study of the relationship between legal evolution and societal complexity found that ‘elements of legal organization emerge in a sequence, such that each constitutes a necessary condition for the next’ (Schwartz and Miller 1964: 160). The emergence of the core elements of a distinct legal system followed a definite order − counsel, mediation, police. This was related to the development of a more complex division of labour.
Specialized criminal law institutions emerge only in relatively complex societies, but they are not a straightforward reflex of a burgeoning division of labour. They develop hand in hand with social and economic inequality and hierarchies of power. They are means for the emergence and protection of more centralized and dominant class and state systems. A wide-ranging review of the anthropological literature concluded that the development of specialized law enforcement ‘is linked to economic specialization and differential access to resources that occur in the transition from a kinship- to a class-dominated society’ (Robinson and Scaglion 1987: 109). During this transition, communal policing forms are converted in incremental stages to state-dominated ones, which begin to function as agents of class control in addition to more general social control (Robinson, Scaglion and Olivero 1994).
This intimate interrelationship between inequality and the emergence of crime and criminal law was anticipated by Adam Smith, supposedly the prophet of free-market economics. In less developed societies, order can be maintained by informal community ‘interposition’ he argues, because: ‘Property, the grand fund of all dispute, is not then known …But …when some have great wealth and others nothing, it is necessary that the arm of authority should be continually stretched forth …Laws and government may be considered in this and indeed every case as a combination of the rich to oppress the poor, and preserve to themselves the inequality of the goods which would otherwise be soon destroyed by the attacks of the poor’ (Smith 1982 [1782−4]: 208).
Codes of law backed up by adjudication and enforcement personnel did emerge in some ancient societies. Well-known examples include the Babylonian Code of Hammurabi (approximately 1800 BC), the Hebrew Bible (dated by contemporary scholars as developing between about 1200 and 165 BC), and, most elaborate of all, the corpus of Roman Law that proliferated from the eighth century BC up to the sixth century AD. The Bible and Roman Law are crucially important sources of western law, and many aspects of present-day criminal and civil law clearly reflect these origins. Nonetheless, whilst all these codes penalize acts that are core offences in contemporary criminal law, such rules are not distinguished from what would now be seen as religious, civil, family or administrative law. All types of law were subject to similar procedures and punishments.
Criminal law: an ideal-type
The development of specifically ‘criminal’ law, as distinct from other forms of order maintenance, adjudication and enforcement of norms, is associated with the advent of modernity. To clarify this, it is helpful first to construct an ideal-type of ‘criminal law’, as it has come to be understood in modern industrial capitalist societies since the late eighteenth century. The distinctive features of ‘criminal’ law, contrasted with other areas of law and conflict regulation, include the following:
close procedural association with the state,
punishment not compensation as the outcome of cases,
the notion of individual responsibility,
a tacit background assumption of a reasonably stable and peaceful society.
These elements form an ideal-type, and many aspects of actually existing criminal law systems do not comply with them all. Moreover, there are distinct tendencies away from these features in recent years, in particular the growth of absolute offences not requiring individual responsibility, or mens rea, and a pre-emptive turn towards preventing future threats rather than punishing past infractions (Lacey 2001; Ramsay 2012; Ashworth and Zedner 2014; Horder 2014). Nonetheless, these elements do distil the quintessential paradigmatic aspects of the idea of criminal law, so that the legitimacy of such developments is highly contentious.
The centrality of the state in criminal law
Criminal laws are deemed to be offences against the public realm, as distinct from private interests, even if there is also harm to specific individuals. The legislative and judicial arms of the state have the authority to determine what is treated as criminal, i.e. subject to state-organized punishment rather than to private redress or revenge. This is symbolized clearly by the way criminal cases are named, as (in the United Kingdom) the Crown against the defendant, R. v. X, with the name of the victim (if any) not featuring. This was the culmination of a long set of processes by which state agencies (the police, and now also the Crown Prosecution Service) gradually became responsible for the investigation and prosecution of offences. Hitherto, these had been primarily private initiatives (Hay and Snyder 1989; Godfrey and Lawrence 2014: ch. 3).3
The nature of criminal proceedings has become one of establishing whether a defendant has committed an offence against a universalistically framed, state-defined rule of law. This is distinguishable from judging conduct as a sin against religious law, an affront to sovereignty, an interpersonal harm to other individuals, or a violation of local community notions of correct conduct, as courts had done from medieval to early modern British society (Jeffery 1957; Gatrell, Lenman and Parker 1980; Sharpe 2001; Lacey 2014).
Establishing the authority of an apparently impersonal, universalistic law involved protracted and often violent conflict, for example over redefining as theft what had been seen as customary perquisites of the poor (like gleaning crops or gathering fallen wood). Theft itself was a highly disputed category, constructed slowly over centuries (Hall 1952 [1935]; Lacey et al. 2003: ch. 4). It only became established as a general offence during the eighteenth century, as capitalist relations became dominant. Until then, in the absence of violence (making it robbery) or physical trespass, taking something claimed by another was widely seen as a civil issue to be settled between the parties as late as the publication of Blackstone's Commentaries on the Laws of England in the 1760s (Palmer 1977).
The proliferation of capital punishment for minor property offences during the eighteenth century paradoxically underlines the severity of the struggle over definition (Thompson 1975). It reflected the tighter conception of property rights in capitalist market relations, which displaced the ‘moral economy’ embedded in traditional networks of obligation and entitlement. Nonetheless, a never fully submerged sense of some crime as ‘social’ – defiance of the power of the privileged orders – survived in subterranean fashion (Thompson 1971, 2009; Hobsbawm 1972; Linebaugh 1976, 2006, 2014; Lea 1999). Victims came to feature in criminal cases as witnesses rather than principals, although there has been some movement in recent decades to alleviate their marginality to proceedings (Rock 2004).4
